Filed 2/14/18 In re S.L. CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re S.L. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.C. et al.,

Defendants and Appellants.


E068343

(Super.Ct.Nos. J264262, J264263 &
J264264)

OPINION


APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.C.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant T.M.
Jean-Rene Basle, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
Defendant and appellant J.C., hereafter referred to as father, appeals from an order terminating his parental rights to the minors S.L. and G.C. Throughout the dependency proceedings, father was incarcerated in a different county, awaiting trial for the murder of an unrelated infant, and was not allowed to attend the proceedings. He was, however, represented at all times by counsel. He contends that the juvenile court violated his federal constitutional due process rights and his state statutory right to be notified about juvenile court proceedings and to be produced to attend those proceedings. He contends that his exclusion from the jurisdiction/disposition hearing was prejudicial.
We conclude that father’s contentions with respect to his absence from the jurisdiction/disposition hearing are not cognizable in this appeal because he did not appeal from the disposition order. We further conclude that he is not excused from the requirement to file a timely appeal from that order, contrary to his contention. He has not attempted to demonstrate that he suffered any prejudice from his involuntary absence from the hearing on termination of his parental rights, which is the sole proceeding from which his appeal is timely. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On February 26, 2016, petitions pursuant to Welfare and Institutions Code section 300 were filed in San Bernardino County as to the three children of T.M. (hereafter mother). (All further statutory citations refer to the Welf. & Inst. Code unless another code is specified.) G.C. was four years old, S.L. was two years old, and L.L. was six months old. Mother was then cohabiting with T.L., the father of L.L., or had been immediately prior to the events leading to the dependency proceedings. Father was in custody in Riverside County, awaiting trial for the murder of the infant daughter of the woman with whom he had been cohabiting.
The petitions were filed following an altercation between mother and T.L., during which she allegedly punched him in the face and smashed the windows of his vehicle. Mother was arrested for domestic violence. Mother had a history of methamphetamine abuse. She had been clean for several years, but appeared to have relapsed. The home in which they had been living, but were then vacating, was a “mess” and lacked basic provisions for the children. G.C. and S.L. were playing outside without shoes; S.L. was wearing only a diaper. Both children were dirty, had runny noses, and were coughing. They fell asleep almost as soon as they were placed in a car. They slept a good part of the day while their placement was being arranged. G.C. and S.L. were placed with their paternal aunt.
The petitions alleged that mother had endangered the children by engaging in domestic violence in their presence, placing them at risk of severe harm; that she lacked basic provisions and a safe home, placing them at risk for severe neglect; and that she suffered from substance abuse that negatively affected her ability to provide safe and adequate care, within the meaning of Welfare and Institutions Code section 300, subdivision (b). They also alleged that she was cohabiting with a registered sex offender who had been convicted of a violation of Penal Code section 288, placing the children at risk for sexual abuse, within the meaning of Welfare and Institutions Code section 300, subdivision (d), and that she had been arrested and incarcerated for domestic violence and was unable to provide for the care and support of the children, within the meaning of Welfare and Institutions Code section 300, subdivision (g). As to father, the petitions alleged that he was incarcerated for a charge of murder and was therefore unable to provide for the care and support of the children, within the meaning of Welfare and Institutions Code section 300, subdivision (g), and that he had been arrested and incarcerated for causing the death of an eight-week-old baby, putting the children at risk for severe harm or death, within the meaning of Welfare and Institutions Code section 300, subdivision (j).
Father was present at the birth of G.C., signed a declaration of paternity and is named on the child’s birth certificate. He was apparently cohabiting with mother before and after G.C.’s birth. Because he was incarcerated, he was not present at the birth of S.L. Although mother reported that he is the father of S.L., he is not named on the birth certificate and did not sign a declaration of paternity. The court found that father is the presumed father of G.C. and that he is only the biological father of S.L. The court also found that ICWA does not apply.
Neither reunification services nor visitation were ordered for father. Mother was given a reunification plan, which she ultimately failed to complete. G.C. and S.L. were removed from the home of their aunt, at her request, because she was not able to deal adequately with their behavior. They were placed in a foster home with the anticipation of adoption if mother failed to reunify. Reunification services were terminated on November 30, 2016. At the section 366.26 hearing held on April 24, 2017, the court found that the children were likely to be adopted within a reasonable time and terminated parental rights. Father filed a timely notice of appeal, as did mother. (See fn. 1, ante.)
LEGAL ANALYSIS
Father was not present at any of the hearings in the dependency proceedings, although he was represented by counsel from the detention hearing through the Welfare and Institutions Code section 366.26 hearing. He contends that by proceeding in his
 
absence, the juvenile court violated both his constitutional right to due process and his statutory right, embodied in Penal Code section 2625, to be present at hearings despite his incarceration. He also contends that he did not receive notice of his right to appeal from the disposition order and did not file a notice of appeal from that order for that reason.
 
Therefore, he contends, he should be allowed to address in this appeal the prejudicial effect of his absence from the jurisdiction/disposition hearing.
The first appealable order in a dependency proceeding is the disposition order. In an appeal from that order, the appellant may raise any errors that occurred up to that point in the dependency. (In re A.A. (2016) 243 Cal.App.4th 1220, 1234.) If a party fails to appeal from the disposition order, however, the order is “‘“final and binding and may not be attacked on appeal from a later appealable order.” [Citations.]’” (Ibid.) In In re A.O. (2015) 242 Cal.App.4th 145, this court held that an exception to this rule applies if the juvenile court fails to advise a parent of his or her right to appeal from the dispositional order. (Id. at pp. 147-149.) In In re A.A., however, we held that as expressly stated in
 
rule 5.590(a) of the California Rules of Court, no appeal advisement is required if the parent is absent from the disposition hearing. (In re A.A., at pp. 1236-1238.) Here, father was not present at the disposition hearing. He contends, however, that the rule should not apply because he was involuntarily absent, as a result of the juvenile court’s erroneous assumption that an order to transport him for the hearing would have been ineffective.
We agree with father that Penal Code section 2625 cannot simply be ignored because there might be some difficulty involved in arranging for the parent to be transported from another county. Here, however, the record does not reflect the reason for the court’s belief that Penal Code section 2625 did not require it to arrange for father’s attendance. Moreover, father’s attorney not only did not object to proceeding in his absence, she conceded on two occasions that father could not be transported. As a general rule, a reviewing court will not consider an issue if an objection could have been but was not made in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) Dependency matters are not exempt from that rule. (Ibid.) The purpose of the rule is to encourage parties to bring errors to the trial court’s attention so that they can be corrected. (Ibid.) A second purpose is to create a record that permits review of the trial court’s ruling to determine if it was erroneous. (In re A.E. (2008) 168 Cal.App.4th 1, 5.) Accordingly, even if we did hold that father was excused from filing a timely notice of appeal from the disposition order, the issue of the trial court’s failure to arrange for his attendance would still not be cognizable because it was not preserved for appeal by a timely objection.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:


MILLER
J.

FIELDS
J.